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Tokaji: Reforming Registration

Dan Tokaji offers this guest post:
On Monday, I identified four problem areas to watch out for on Election Day: 1) lines at the polls, 2) voting equipment, 3) voter registration lists, and 4) provisional and absentee ballots. While machine breakdowns and polling place lines got the lion’s share public attention on Election Day, a closer look reveals that voter registration was the election administration issue of 2008. Looking forward, it is imperative that policymakers consider changes to voter registration that would eliminate unnecessary barriers to participation and reduce the need for provisional ballots. Expanding Election Day Registration would be a great place to start.
There are a couple of reasons for the special importance of voter registration this year. One is the massive influx of new voters. The other is a change in the law. The Help America Vote Act of 2002 (HAVA) required every state to implement a statewide voter registration list by 2006. Before that, most states maintained their voter registration lists at the local level. This was the first presidential election in which this major change to our voter registration system was in effect. And like any other change — such as the implementation of new voting machines and provisional voting in 2004 — it caused its share of problems.
Especially challenging was the implementation of HAVA’s requirement that statewide registration databases be “matched” against information in motor vehicle and social security records. This particular requirement proved problematic, because HAVA provides little clear direction on how this matching is to be done or on what consequences should follow from a failed match. In addition, the process of matching registration records against other government lists turned out to be much more difficult than Congress imagined when it passed HAVA.
Registration matching became a focal point of controversy, partly because of the revelation that some ACORN canvassers had submitted phony voter registration forms rather than doing the work for which they were being paid. There is little evidence that this led to actual voter fraud — Mickey Mouse’s name may have appeared on registration forms, but he didn’t show up to vote. Nevertheless, Republicans in Ohio and Wisconsin raised the specter of voter fraud in litigation brought to compel matching by state officials. [Disclosure: I joined voting and civil rights groups on amicus briefs opposing bothlawsuits.]
A more pressing concern is that overly restrictive matching and purging practices will exclude eligible voters. As the Brennan Center has documented, data entry errors and other administrative problems can result in erroneous mismatches. Florida’s “no match, no vote” policy is probably the worst example. Fortunately, most other states declined to penalize voters for administrative mistakes. In Ohio, more than 200,000 voters who registered this year — more than one quarter — did not match. In Wisconsin, four members of the six-person board that runs the state’s elections had a mismatch. To remove these mismatched voters from the list or require them to cast provisional ballots would have created serious administrative problems, compounding lines at polling places and creating the risk of eligible citizens’ votes being rejected.
Fortunately, Ohio and Wisconsin didn’t remove “mismatched” voters from the rolls or make them cast provisional ballots, and the courts wisely declined to order any such relief. Unfortunately, there were still lots of registration problems that required many voters in some states to cast provisional ballots. A large number of provisional ballots is problematic not only because they can result in eligible voter’s ballots not being counted, but because they can exacerbate the uncertainty surrounding a close election.
Although the presidential election wasn’t close enough to bring provisional ballots into play, there are other still-unresolved contests that illuminate this problems. Most notable are close congressional races in Minnesota and Ohio. In Minnesota, the Democratic candidate for the U.S. Senate Al Franken currently trails Republican incumbent Norm Coleman by a razor-thin margin of just 237 votes out of over 2.8 million cast. In Ohio, Mary Jo Kilroy, the Democratic candidate for the 15th Congressional District, trails Republican Steve Stivers by 146 votes out of more than 260,000 cast (though the margin may be going up due to a just-detected tabulation error).
The vote totals in both these races can be expected to change before there become final — but substantial swings are especially likely in Ohio. A major difference between these two states is in the use of provisional ballots. Ohio relies very heavily on them. There were over 27,000 cast in Franklin County alone, about half of which are probably in the 15th CD. As I explained in this comment, a large number of provisional ballots tends to increase the margin of litigation, casting uncertainty over the result and making disputes over the outcome more likely. There’s a good chance that Kilroy and Stivers will wind up fighting over whether to cast provisional ballots, perhaps using litigationpending in federal court as the vehicle.
On the other hand, Minnesota has Election Day Registration. EDR not only increases turnout — around 5-10%, according to most studies — but also eliminates the need for provisional ballots. If a previously registered voter moves or has her name removed from the rolls, she can simply register (or re-register) at the polling place. Minnesota thus reported zero provisional ballots in 2006. Because there are no provisional ballots to fight over, EDR in Minnesota eliminates a major source of contention and potential litigation.
That’s one of the reasons why my Moritz colleagues and I ranked Minnesota ranked first and Ohio last, in a study of five midwestern states completed last year. Expanding EDR to other states would help reduce the problems arising from failed matches, since voters could still re-register even if they have been removed from the rolls. While opponents complain that EDR increases the risk of fraud, a report by Lori Minnite found scant evidence of voter fraud in the states that have EDR. Past sessions of Congress have failed to enact legislation that would require EDR in all federal elections. Now is the time for the incoming Congress to reconsider such legislation.
Other possible registration reforms also warrant consideration. One possibility is to move toward a Canadian-style universal voter registration system. This system resulted in 93.1% of eligible citizens in Canada being registered. By contrast, just 67.6% of eligible citizens in the U.S. were registered as of 2006. Having government officials take affirmative responsibility for registration could reduce some of the problems that inevitably occur when private groups like ACORN are left to shoulder the burden of registering people not reached through other means.
Another option worth considering is moving responsibility for registration to the federal government. This might be combined with universal voter registration, as Rick Hasen suggests. A major problem with this reform is developing a federal institution that is competent to execute this responsibility. Given the problems that the U.S. Election Assistance Commission (EAC) has experienced, institutional reform is a necessary prerequisite to federalization of the registration rolls.
Reasonable minds can certainly disagree on what registration reforms are most worthy of adoption. What cannot reasonably be disputed is that this component of our democratic infrastructure is in need of further repairs. The fact that the 2008 presidential election didn’t go into overtime shouldn’t blind us to that reality.

Cheap Speech and What It Has Done (to American Democracy), First Amendment Law Review (forthcoming 2018) (draft available)

The 2016 U.S. Voting Wars: From Bad to Worse, William and Mary Bill of Rights Journal (forthcoming 2018) (draft available)

Essay: Race or Party, Race as Party, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases, William and Mary Law Review (forthcoming 2018) (draft available)